Don’t Believe It!

When witnesses are called to testify, they have to swear to tell not just the truth, but the whole truth. We do that because, to state the obvious, the withholding of selected parts of a story can mislead the audience every bit as much as outright lying. But reporters don’t have to worry about that. As long as they aren’t being deliberately defamatory, they can write anything they want, no matter how tendentious and selective their presentation. Case in point, the December 3rd, article in the Los Angeles Daily Journal, by Rebecca Beyer, entitled City Ordered to Pay for Turning Zoned Area Into a “Bathtub”, reporting U.S. District Court’s $36.87 million award against the city of Half Moon Bay for its uncompensated taking of a privately-owned 24.7-acre parcel of land. The city first flooded it and then had the chutzpa to point to its “wetland” condition as a pretext for denying its owner the right to develop it for a use expressly permitted by its long-standing zoning.  That’s the case we blogged about in the preceding post.

Beyer’s story gives prominent space to the assertion of John D. Echeverria, a leading national “police power hawk,” who just plumb doesn’t like the modern application of the Just Compenation Clause of the Constitution. Echeverria is quoted as saying that the ruling of Chief U.S. District Court Judge Vaughn Walker who presided over this case is “an egregious example of an activist federal judge reaching out to decide a case that properly belongs in state court.” “Reaching out?” My goodness. Have case loads in federal court fallen so low that federal judges have nothing better to do than to run around, reaching out and grabbing state court cases?  That sounds pretty bad, doesn’t it? Could that really happen? Not really.

What neither Beyer nor Echeverria tells us is that in fact, the case was filed in state court, as required by the Supreme Court in its Williamson County decision (473 U.S. 172). So you’d think that this should have satisfied the city. Right? Guess again. After the case was duly filed in state court as required by Wiliamson County, the city removed it to federal court, arguing that doing so was its choice, being that since a constitutional issue was involved, it was a proper case for federal court. See City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997). 

So the case wound up in federal court because the city transferred it there. The case was then processed over a period of two years, including fortysomething depositions, hiring expert witnesses, and all the other preparatory litigational big-case foofaraw that consumed millions. Then the case went to trial that lasted two weeks (nine court days), with 39 witnesses, including seven experts, plus 300 exhibits. All that without a peep from the city about being in the wrong court. It was only after the evidence was in and it made clear that the city had done wrong, that it was suddenly born again. It was only after the trial was over that the city filed a post-trial brief asserting for the first time that the case shouldn’t be in federal court, and that — are you ready? — it should have been tried in state court. As far as we know the city never said “Oops,” or “Sorry about that,” or offered to reimburse the court and parties for the wasted time, effort and expenses it inflicted on them. By our lights Chief Judge Walker displayed the patience of a saint for not sanctioning these guys. If it had been us — God forbid! — we’d have given serious consideration to reviving the medieval judicial custom of ordering that the miscreants’ hands be chopped off and nailed to the court house door as a warning to others. But what do we know?

Anyway, Beyer’s Daily Journal story glosses over all this, and by highlighting Echeverria’s “reaching out” asserion leaves its readers with a false impression of what actually transpired. No, Chief Judge Walker did not “reach out.” The city brought him this case on a silver platter, demanding justice, and justice is exactly what it got. Like the proverb says, be careful what you ask for because you may just get it.

Update. We are indebted to Aaron Kinney who reminds us in his column that Half Moon Bay also had the chutzpa to charge the land owner a million dollars for sewers for his development, and then told him that he could not develop. For Kinney’s detailed description of the facts of this case and of Chief Judge Walker’s opinion go  here. The opinion is now available on Westlaw — 2007 WL 4276385 (N.D. Cal.).

6 thoughts on “Don’t Believe It!

  1. Robert Thomas

    In ripeness doctrine, what’s good for the goose (government) isn’t necessarily good for the gander (property owners).

    Government gets to choose the forum, and then if it loses the federal claims that gave rise to federal jurisdiction in the first place, the very fact that it lost is the reason why the federal court had no jurisdiction.

    I guess this is why one of the justices in San Remo suggested it was time for a case to come up so the Court could reconsider the Williamson County rule.

  2. Gideon

    Someone is asking the Supreme Court to overrule Williamson County. Peterson v. Village of Clifton, seeking certiorari to the 7th Circuit. It was just filed; I don’t have a number yet.

    As for your other point, see Sinaloa Lake Owners Ass’n. v. City of Simi Valley, 882 F.2d 1398, footnote 4 (9th Cir. 1989).

  3. Claude Bolduc

    Did you mean : Bruce Peters v. Village of Clifton. this is the second attempt for certiorari (that I know of ) in the 7th circuit this year, the first was Rockstead v. City of Crystal Lake (which was denied). I wonder what conditions the Supreme Court is looking for?

    In reference to John Echeverria.
    Here in Maine John Echeverria he managed (though his amicus) to convince the Maine Supreme Court (see Wyer V. Board of Environmental Protection, 2001) that there was no such thing as a Penn. Central analysis.

    It’s not that people want to have their cases heard in federal courts it’s that they want their cases heard PERIOD.

  4. Dave Breemer


    Enjoyed the Yamigiwa case immensely. The overrule Williamson cert petition you refer to above is Peters v. Village of Clifton. Its a physical invasion case out of the 7th Circuit. ( I know because I happen to be lead counsel). If you like, I will send you a copy of the petition. The relevant docket info is here:

    No. 07-635 Title: Bruce Peters, Petitioner v. Village of Clifton, Illinois, et al. Docketed: November 15, 2007 Lower Ct: United States Court of Appeals for the Seventh Circuit Case Nos.: (06-3735) Decision Date: August 22, 2007

    Also, if you have not seen it yet, you might like the 9th circuit’s Nov. 1, 2007, decision in Crown Point Development v. City of Sun Valley, 2007 WL 4225774, a published opinion burying Armendariz. The mandate recently issued, so its the law now.


    Dave Breemer

  5. Gideon

    To Claude Bolduc:

    You raise a good question. What is the Suprem Court looking for in the next takings case? The short answer is: God only knows, because the Justices evidently don’t know themselves. If you take an overview of SCOTUS inverse condemnation jurisprudence (or more accurately, jurisimprudence), it becomes clear, at least to knowledgeable lawyers, that they haven’t a clue to what they are about. In their hands a traditionally difficult area of the law has by degrees become incomprehensible and self-contradictory. They told us in Penn Central that they make their decisions in this field on an ad hoc basis, and that is true. But that also means that by definition there is no unifying doctrine or even coherence to their output. Add to that the frequent 5 to 4 decisions (in which doctrine has to be shaped to get that fifth vote) and the bottom line becomes clear: they have stumbled from case to case without much of an idea of what they are doing. For my detailed take on all this see Gideon Kanner, Hunting the Snark, Not the Quark: Has the Supreme Court Been Competent in Its Effort to Formulate Coherent Regualtory Takings Law? 30 Urban Lawyer 307 (1998). As for Penn Central, see Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rts. Jour. 653 (2005).

  6. Claude Bolduc

    Just a head’s up,
    Peters v. Village of Clifton, Ill. will be “Distributed for Conference” on 2-29-08.

    Breemer has done good job with his brief, although I wish he had not asked for a separate ruling for circumstances where their is a physical takings(versus categorical takings).
    I enjoyed : Hunting the Snark, Not the Quark and Making Laws and Sausages.



    Distributed for Conference 2-29-08

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